PURCHASE AND SALE AGREEMENT
[Westchester
West]
PURCHASE
AND SALE AGREEMENT (“Agreement”) dated as
of September 10, 2008 (the “Effective Date”),
between BRI WESTCHESTER LIMITED PARTNERSHIP, a Maryland limited partnership
(“Seller”),
with an address of c/o Berkshire Property Advisors, L.L.C., Xxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxx,
Telecopier No. 000-000-0000, and HOME PROPERTIES, L.P., a New York limited
partnership (“Buyer”), 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, Telecopier No.
000-000-0000.
In
consideration of the mutual undertakings and covenants herein contained, Seller
and Buyer hereby covenant and agree as follows:
SECTION
1
SALE OF PROPERTY AND
ACCEPTABLE TITLE
1.01 Agreement to Buy and to
Sell; Property. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, at the price and upon the terms and conditions set forth
in this Agreement, all of Seller’s right, title and interest in and to the
following:
(a) that
certain tract or parcel of land located at 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx 00000, more particularly described in Schedule A
attached hereto (the “Land”);
(b) the three
hundred forty five (345) unit apartment complex commonly known as Westchester
West Apartments, which contains related improvements, facilities, amenities,
structures, driveways and walkways, all of which have been constructed on the
Land (collectively, the “Improvements”);
(c) any
alleys, strips or gores adjoining the Land, and any easements, rights-of-way or
other interests in, on, under or to, any land, highway, street, road,
right-of-way or avenue, open or proposed, in, on, under, across, in front of,
abutting or adjoining the Land, and all right, title and interest of Seller in
and to any awards for damage thereto by reason of a change of grade
thereof;
(d) the
accessions, appurtenant rights, privileges, appurtenances and all the estate and
rights of Seller in and to the Land and the Improvements, as applicable, or
otherwise appertaining to any of the property described in the immediately
preceding clauses (a), (b) and/or (c);
(e) the
personal property listed in Schedule B
attached hereto owned by Seller and located on or in or used solely in
connection with the Land and Improvements, excluding, however, any computer
equipment, computer software and computer hardware (but not the data pertaining
to the operation of the Property) (collectively, the “Personal
Property”);
(f) all
Service Contracts (as hereinafter defined) that are being assumed by Buyer in
accordance with this Agreement; and
(g) all of
the lessor’s interest in the Leases (as hereinafter defined) and any refundable
security or other refundable deposits thereunder and all of Seller’s interest in
any intangible property now or hereafter owned by Seller and used solely in
connection with the Land, Improvements and Personal Property, including all
warranties, guaranties, governmental permits, approvals and licenses, the name
“Westchester West Apartments” and variations thereof and any other trade names
and trade marks associated with the Land and Improvements, but excluding (i) any
rights to the name “Berkshire” (h) and the
Berkshire trademark, and (ii) the right, title and interest of any website or
domain names maintained by Seller or Seller’s property manager with respect to
the Property.
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All of
the items described in subparagraphs (a) through (g) above are collectively
the “Property”.
1.02 Title. Seller
shall convey to Buyer by special warranty deed (the “Deed”), and Buyer
shall accept the fee simple title to the Property in accordance with the terms
of this Agreement, and Buyer’s obligation to accept said title shall be
conditioned upon Buyer then being conveyed good and clear record and marketable
fee simple title to the Property, subject only to the Permitted Exceptions (as
hereinafter defined). Notwithstanding the foregoing, Buyer shall have
the opportunity to review and make objections to title as follows.
Buyer
will obtain from Lawyers Title Insurance Corporation, Attention: Xxxxx X.
Xxxxxx, 0000 Xxxx Xxxx, Xxxxxxxxx, XX 00000, Telephone (000) 000-0000;
Facsimile: (000) 000-0000 working in cooperation with Land America/Lawyers Title
Insurance Corporation, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxx, Esq., Telephone: 000-000-0000;
Facsimile: 000-000-0000 (the “Title Insurer”) in
cooperation with Xxxxxxxx X. Xxxxxxxx, Xxxx & Xxxxx, Chartered, 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Telephone: (000)
000-0000; Facsimile: (000) 000-0000, a commitment for title insurance covering
the Property and legible copies of all instruments and plans mentioned therein
as exceptions to title (all of such items are hereinafter collectively referred
to as the “Commitment”) for an
Owner’s Title Insurance Policy (the “Title
Policy”). The Commitment shall be in the amount of the
Purchase Price (as defined in Section 2.01 hereof). Should such
Commitment contain any title exceptions which are not acceptable to Buyer, in
its reasonable discretion, Buyer shall, prior to the expiration of the
Inspection Period (as defined in Section 6.02 hereof), notify Seller of any such
exceptions. If Buyer fails to so notify Seller of any such
exceptions, any exceptions existing at the expiration of the Inspection Period
shall be deemed accepted by Buyer and included as the “Permitted
Exceptions”. If Buyer timely notifies Seller in writing of any
such exceptions, Seller, in Seller’s sole discretion, shall have until the
Closing Date to remove or cure such exceptions, except with respect to the
Monetary Liens (as hereinafter defined), which Seller shall remove or cure at
Closing with the proceeds from the Purchase Price. Seller shall be
deemed to have given notice to Buyer that Seller refuses to cure any such
exceptions, which Seller may so do in its sole discretion, unless Seller, within
ten (10) days after receipt of notice from Buyer, shall notify Buyer in writing
(the “Seller’s
Notice”) that Seller will either attempt to cure or refuses to cure such
exceptions. If Seller’s Notice indicates that Seller refuses to cure
said exceptions (or if Seller is deemed to refuse to cure said
exceptions), Buyer may (a) terminate this Agreement within two
(2) business days after (i) receipt of Seller’s Notice, or (ii) the date that
Seller is deemed to have given notice that Seller refuses to cure such
exceptions, in which event the Deposit shall be returned to Buyer, or
(b) if Buyer fails to so terminate, Buyer shall be deemed to have waived
such exceptions and accept title subject thereto, in which event there shall be
no reduction in the Purchase Price. Notwithstanding the foregoing,
Seller, at its cost, shall be obligated to cure or remove by Closing the
following (collectively, the “Monetary Liens”): all
mortgages and deeds of trust against the Property, except the Existing Deed of
Trust (as defined below). The Closing (as hereinafter defined) shall
be extended for a reasonable number of days to accommodate Seller’s obligations
under this Section 1.02.
1.03 Survey. Seller
has furnished to Buyer a copy of: (i) ALTA/ACSM Land Title Survey of 0000 Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx prepared by Landmark-Fleet Surveyors, dated
January 5, 2005, last revised January 12, 2005 (the “Prior Survey”), and
Buyer may obtain a current as-built survey (the “Survey”) of the Land
and the Improvements by a registered land surveyor.
Should
the Prior Survey contain any encumbrances, encroachments or other survey defects
which are not acceptable to Buyer in its reasonable discretion (collectively
“Prior Survey
Matters”), Buyer shall,
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prior to
the expiration of the Inspection Period, notify Seller of any such Prior Survey
Matters are unacceptable. In addition, if Buyer obtains a New Survey,
should the New Survey contain any encumbrances, encroachments or other survey
defects which do not appear on the Prior Survey and which are not acceptable to
Buyer in its reasonable discretion (collectively, “New Survey Matters”),
Buyer shall, prior to the expiration of the Inspection Period, notify Seller of
any such New Survey Matters. (The Prior Survey Matters and the New
Survey Matters are referred to collectively as “Survey
Matters”). If Buyer does not obtain a New Survey or if Buyer
fails to so notify Seller of any Survey Matters during the time period as
described above, all Survey Matters shall be deemed accepted by
Buyer. If Buyer timely notifies Seller in writing of such Survey
Matters, Seller, in Seller’s sole discretion, shall have until the Closing Date
to cure such Survey Matters. Seller shall be deemed to have given
notice to Buyer that Seller refuses to cure any such Survey Matters, which
Seller may so do in its sole discretion, unless Seller, within ten (10) days
after receipt of notice from Buyer, shall deliver a Seller’s Notice which
includes such Survey Matters. If Seller’s Notice indicates that
Seller refuses to cure said Survey Matters (or if Seller is deemed to refuse to
cure said Survey Matters), Buyer may (a) terminate this Agreement within
two (2) business days after (i) receipt of Seller’s Notice or (ii) the date
Seller is deemed to have given notice, that Seller refuses to cure such Survey
Matters, in which event the Deposit shall be returned to Buyer, or (b) if
Buyer fails to so terminate, Buyer shall be deemed to waive such Survey Matters
and accept title subject thereto, in which event there shall be no reduction in
the Purchase Price.
SECTION
2
PURCHASE PRICE, ACCEPTABLE
FUNDS, DEPOSIT AND ESCROW OF DEPOSIT
2.01 Purchase
Price. The purchase price (“Purchase Price”) to
be paid by Buyer to Seller for the Property is Fifty Three Million Three Hundred
Fifty Thousand and 00/100 Dollars ($53,350,000.00) subject to the prorations and
adjustments as hereinafter provided in this Agreement. The Purchase
Price shall be comprised of: (A) the principal balance assumed by Buyer under
the Existing Loan (defined in Section 2.05 below); and (B) the balance in
immediately available funds, after taking into account the prorations and
adjustments required herein (including, without limitation, those set forth in
Section 12) (the “Equity Portion of the
Purchase Price”).
2.02 Payment of
Monies. All monies payable under this Agreement, unless
otherwise specified in this Agreement, shall be paid by wire
transfer.
2.03 Payment of Purchase
Price. The Purchase Price, subject to prorations and
adjustments, shall be paid as follows:
(a) One
Million and 00/100 Dollars ($1,000,000.00) paid simultaneously with the complete
execution of this Agreement (the “Initial
Deposit”);
(b) Five
Hundred Thousand and 00/100 Dollars ($500,000.00) shall be paid as an
additional deposit within one (1) business day after expiration of the
Inspection Period if Buyer does not elect to terminate this Agreement pursuant
to Section 6.02 hereof (the “Additional Deposit”
and, together with the Initial Deposit and any and all interest accrued thereon,
the “Deposit”);
and
(c) Payment at
Closing. At the consummation of the transaction contemplated
hereby (the “Closing”), Buyer
shall deliver to Escrow Agent (as defined below) cash in an amount equal to the
Equity Portion of the Purchase Price less the amount of the Deposit (as defined
below) held by the Escrow Agent and subject to adjustments and apportionments as
set forth herein. The Equity Portion of the Purchase Price, as
adjusted, shall be paid at Closing by wire transfer of immediately available
federal funds, transferred to the order or account of Seller or such other
person as Seller may designate in writing.
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(d) Escrow
Provisions. The Initial Deposit shall be delivered by Buyer to
the Title Insurer, National Accounts, Fairfield Office,
Attention: Xxxxx X. Xxxxxx (the “Escrow Agent”)
simultaneously with the complete execution of this Agreement. The
Additional Deposit shall be delivered by Buyer to Escrow Agent in accordance
with Section 2.03(b) above. By executing the Receipt as provided
herein, Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial
Deposit paid by Buyer to be applied on the Purchase Price of the Property under
the terms hereof. Escrow Agent agrees to hold, keep and deliver said
Deposit and all other sums delivered to it pursuant hereto in accordance with
the terms and provisions of this Agreement. Upon receipt from Buyer
of the Deposit, Escrow Agent shall invest the Deposit in an interest-bearing
account or money market fund acceptable to Buyer and Seller. At the
Closing, Escrow Agent shall release the Deposit to Seller, which Deposit shall
be credited against the balance of the Purchase Price owed by Buyer to
Seller. Escrow Agent shall not be entitled to any fees or
compensation for its services in holding the Deposit
hereunder. Escrow Agent shall be liable only to hold said sums and
deliver the same to the parties named herein in accordance with the provisions
of this Agreement, it being expressly understood that by acceptance of this
Agreement Escrow Agent is acting in the capacity of a depository only and shall
not be liable or responsible to anyone for any damages, losses or expenses
unless same shall have been caused by the gross negligence or willful
malfeasance of Escrow Agent. In the event of any disagreement between
Buyer and Seller resulting in any adverse claims and demands being made in
connection with or for the monies involved herein or affected hereby, Escrow
Agent shall be entitled to refuse to comply with any such claims or demands so
long as such disagreement may continue; and in so refusing Escrow Agent shall
make no delivery or other disposition of any of the monies then held by it under
the terms of this Agreement, and in so doing Escrow Agent shall not become
liable to anyone for such refusal; and Escrow Agent shall be entitled to
continue to refrain from acting until (a) the rights of the adverse
claimants shall have been finally adjudicated in a court of competent
jurisdiction of the monies involved herein or affected hereby, or (b) all
differences shall have been adjusted by agreement between Seller and Buyer, and
Escrow Agent shall have been notified in writing of such agreement signed by the
parties hereto. Escrow Agent shall not be required to disburse any of
the monies held by it under this Agreement unless in accordance with either a
joint written instruction of Buyer and Seller or an Escrow Demand from either
Buyer or Seller in accordance with the provisions hereinafter. Upon
receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of
any notice or request (the “Escrow Demand”) to
perform any act or disburse any portion of the monies held by Escrow Agent under
the terms of this Agreement, Escrow Agent shall give written notice to the other
party (the “Notified
Party”). If within five (5) days after the giving of such
notice, Escrow Agent does not receive any written objection to the Escrow Demand
from the Notified Party, Escrow Agent shall comply with the Escrow
Demand. If Escrow Agent does receive written objection from the
Notified Party in a timely manner, Escrow Agent shall take no further action
until the dispute between the parties has been resolved pursuant to either
clause (a) or (b) above. Further Escrow Agent shall have the
right at all times to pay all sums held by it (i) to the appropriate party
under the terms hereof, or (ii) into any court of competent jurisdiction
after a dispute between or among the parties hereto has arisen, whereupon Escrow
Agent’s obligations hereunder shall terminate.
Seller
and Buyer jointly and severally agree to indemnify and hold harmless said Escrow
Agent from any and all costs, damages and expenses, including reasonable
attorneys’ fees, that said Escrow Agent may incur in its compliance of and in
good faith with the terms of this Agreement; provided, however, this indemnity
shall not extend to any act of gross negligence or willful malfeasance on the
part of the Escrow Agent.
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2.04 Assumption of Existing
Loan. Seller entered into a first lien loan (the “First Existing Loan”)
with Federal Home Loan Mortgage Corporation (“Existing Lender”)
secured by that certain Multifamily Indemnity Deed of Trust, Assignment of Rents
and Security Agreement in favor of Deutsche Bank Berkshire Mortgage, Inc.
(“DB”) dated as
of February 15, 2005, in the original principal amount of $29,500,000 (“First Existing Deed of
Trust”), filed for record in Liber 29335, Folio 703 of the Real Property
Records of Xxxxxxxxxx County, Maryland, as assigned by DB to Existing Lender
pursuant to that certain Assignment of Security Instrument dated as of February
15, 2005 and filed for record in Liber 29335, Folio 751. Seller also entered
into a second lien loan (the “Second Existing Loan”
and, together with the First Existing Loan, the “Existing Loan”) with
DB secured by that certain Multifamily Indemnity Deed of Trust, Assignment of
Rents and Security Agreement in favor of DB dated as of May 10, 2007, in the
original principal amount of $8,000,000 (collectively with the First Existing
Deed of Trust, the “Existing Deed of
Trust”), filed for record in Liber 34292, Folio 142 of the Real Property
Records of Xxxxxxxxxx County, Maryland, as assigned by DB to Existing Lender
pursuant to that certain Assignment of Security Instrument dated as of May 10,
2007 and filed for record in Liber 34292, Folio 193. All loan
documentation related to the Existing Loan is hereinafter referred to as the
“Existing Loan
Documents”. Notwithstanding the foregoing, Buyer may elect to
pay off the Existing Loan at Closing by providing written notice to
Seller of such election at any time prior to the Closing or termination of this
Agreement (the “Buyer
Payoff Election”). It is understood and agreed that Buyer’s
election to payoff the Existing Loan shall be with respect to both the First
Existing Loan and the Second Existing Loan (and not as to one but not the
other).
(a) Within
seven (7) days after the Effective Date, Buyer shall submit to Existing Lender
an application for the assumption of the Existing Loan (the “Assumption”). Each
of Seller and Buyer shall pursue the Assumption with due diligence and in good
faith and shall make all commercially reasonable efforts to obtain Existing
Lender’s consent to the Assumption in accordance with the terms of this
Agreement, including providing all other cooperation the other party reasonably
requests toward that end. Seller agrees to cooperate with Buyer in connection
with Buyer’s preparation of all applications and submissions contemplated
hereunder and, without limiting the generality of the foregoing, shall furnish
such information and execute and deliver such documents on behalf of the Seller
as may be reasonably required in connection therewith. Buyer and
Seller shall establish a mutual understanding for all communications between
Seller, its property manager, or other representative of the Seller and Existing
Lender or any tenant or tenants of the Property regarding the terms and
conditions of any
proposed or submitted application contemplated in connection
herewith.
(b) It shall
be a condition of Closing that Existing Lender shall consent to the Assumption
in writing (the “Lender
Consent”). At Closing, Seller shall assign the Existing Loan
to Buyer, and Buyer shall assume the Existing Loan from Seller, pursuant to an
assignment and assumption agreement that imposes no obligation or liability on
Seller or the Seller’s non-recourse guarantor under the Existing Loan Documents
with respect to any period from and after Closing, with the same effect as if
Seller were paying off the Existing Loan in full at Closing (the “Loan Assignment and
Assumption Agreement”). Notwithstanding anything to the
contrary set forth herein, Seller will accept Xxxxxxx Mac’s standard form
assumption agreement with such customary and reasonable revisions as may be
requested by Seller. The Loan Assignment and Assumption Agreement,
together with any other documents the Existing Lender requires Seller and/or
Buyer to execute and deliver as a condition to the assignment and assumption of
the Existing Loan to Buyer are, collectively, the “Lender Assumption
Documents”. If the Lender Consent is obtained, then at or
before Closing: (a) Seller shall pay all interest accruing on and other fees and
expenses under the Existing Loan through the date prior to the Closing Date; (b)
Buyer shall be responsible for interest and other fees and expenses under the
Existing Loan from and after the (c) Closing
Date; (c) all fees associated with the Assumption (including, without
limitation, a one percent (1%) assumption fee) shall be paid by Buyer; and (d)
Buyer shall receive a credit against the Purchase Price equal to the outstanding
principal balance and all accrued but unpaid interest and other fees and
expenses under the Existing Loan.
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(d) In the
event that the Lender Consent has not been obtained on or before September 30,
2008 (the “Assumption
Deadline”), then Seller shall have the right at any time thereafter prior
to receipt of Lender Consent to terminate this Agreement by providing written
notice of such election to Buyer, in which event the Deposit shall be returned
forthwith to Buyer and, except as expressly set forth herein, neither party
shall have any further liability or obligation to the other
hereunder. In the event that Lender Consent has not been obtained on
or before December 31, 2008 or Lender has disapproved of the Assumption in
writing, then Buyer shall have the right at any time thereafter to terminate
this Agreement by providing written notice of such election to Seller, in which
event the Deposit shall be returned forthwith to Buyer and, except as expressly
set forth herein, neither party shall have any further liability or obligation
to the other hereunder.
(e) In the
event that Buyer exercises the Buyer Payoff Election, then Buyer
shall, at Closing, pay the entire unpaid principal balance of and all accrued
but unpaid interest under the Existing Loan, plus any applicable prepayment
penalty and fees and expenses of the Existing Lender incurred in connection
therewith (to the extent that the same are not properly payable by the Existing
Lender) payable on account of such prepayment under the Existing Loan Documents
(the “Prepayment Amount”).
SECTION
3
THE
CLOSING
Except as
otherwise provided in this Agreement, the delivery of all documents necessary
for the closing of this transaction pursuant to this Agreement (the “Closing”) shall take
place in the offices of Escrow Agent or such other place as Seller and Buyer
shall mutually agree, at 10:00 a.m. Boston time on the date that is ten
(10) days after the later to occur of (i) receipt of the Lender Consent; or (ii)
receipt of the Certificate of Compliance (as defined below) (the “Closing Date”), provided that if
Buyer exercises the Buyer Payoff Election, then the Closing shall take place ten
(10) days after such exercise. The transactions described herein
shall be closed by means of concurrent delivery of the documents of title,
delivery of Title Policy (as hereinafter defined) and the Equity Portion of the
Purchase Price, customarily referred to as a “New York Style” or escrow
closing. It is agreed that time is of the essence of this
Agreement. Buyer and Seller shall execute supplemental escrow
instructions as may be appropriate to enable Title Company to comply with the
terms of this Agreement, so long as such instructions are not in conflict with
this Agreement.
SECTION
4
SELLER’S PRE-CLOSING
DELIVERIES
Seller
shall, in accordance with the provisions of Section 6.01 hereof, furnish to
Buyer, within three (3) business days after the date hereof, for inspection and
approval by Buyer the following, to the extent in the possession of Seller or
its management company:
4.01 Leases. Seller
shall provide Buyer with access on-site to the originals of all leases and
related lease files.
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4.02 Taxes. A
copy of 2006, 2007 and 2008 (if available) real estate and personal property tax
statements for the Property.
4.03 Current Rent
Roll. A list of the current rents now being collected on each
of the apartment units in the Improvements which includes: apartment number,
unit type, tenant name, commencement and termination dates, lease rent and
security deposits.
4.04 Service
Contracts. Copies of all service, maintenance, supply and
management contracts affecting the use, ownership, maintenance and/or operation
of the Property.
4.05 Utility
Bills. A detailed report of all utility bills (gas, electric,
water and sewer) relating to the Property for the immediately prior twelve (12)
month period.
4.06 Operating
Statements. Copies of the Operating Statements (unaudited) for
the Property for 2006, 2007 and 2008 (if available) year to date in the form
customarily used by Seller in the operation of the Property.
4.07 Permits. Copies
of all certificates of occupancy (if any) and other permits and licenses (if
any) in the possession of Seller.
4.08 Existing Loan
Documents. Copies of the Existing Loan Documents.
4.09 Plans and
Specifications. To the extent in Seller’s possession, all
construction plans and specifications relating to the original development of
the Property and any major capital repairs or tenant improvements that have been
conducted at the Property.
4.10 Other. Other
documents or information reasonably requested by Buyer in connection with its
due diligence.
SECTION
5
REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller
represents and warrants to Buyer as follows:
5.01 Leases. As
of the date of this Agreement, there are no leases, subleases, licenses or other
rental agreements or occupancy agreements (written or verbal) which grant any
possessory interest in and to any space situated on or in the Improvements or
that otherwise give rights with regard to use of the Improvements other than the
leases (the “Leases”) described in
Schedule C
attached hereto (the “Rent Roll”) and the
Rental Agreement between Seller and Xxxxxxxxxx County, Maryland dated as of
February 4, 2005. The Rent Roll is true, accurate and complete in all material
respects as of the date set forth therein. To Seller’s knowledge,
Seller has complied in all material respects with all of the landlord’s
obligations under the Leases.
5.02 Service and Management
Contracts. To Seller’s knowledge, Schedule D
attached hereto lists all services, maintenance, supply and management contracts
(collectively, “Service Contracts”)
affecting the operation of the Property. Seller will provide a notice
of termination upon the expiration of the Inspection Period for all Service
Contracts which can be terminated in accordance with their terms and without the
payment of a termination fee by Seller (the “Terminable Service
Contracts”). Buyer
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5.03 shall
assume at Closing (i) the Terminable Service Contracts until such time as the
termination of such contracts by Seller shall become effective, and (ii) all
Service Contracts that cannot be terminated by their terms or that cannot be
terminated without payment of a termination fee by Seller. In any
event, Seller will terminate all management and leasing agreements as of the
Closing Date at no cost to Buyer. Seller shall deliver to Buyer prior to the
expiration of the Inspection Period, true, correct and complete copies of the
Service Contracts. Seller shall be responsible for any and all
amounts due under the Service Contracts for the period prior to
Closing.
5.04 Ability to
Perform. Seller has full power to execute, deliver and carry
out the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and this Agreement constitutes the legal, valid and binding obligation of Seller
enforceable in accordance with its terms. Except as set forth in this
Agreement, no order, permission, consent, approval, license, authorization,
registration or validation of, or filing with, or exemption by, any governmental
agency, commission, board or public authority is required to authorize, or is
required in connection with, the execution, delivery and performance of this
Agreement by Seller or the taking by Seller of any action contemplated by this
Agreement.
5.05 No
Actions. To Seller’s knowledge, except as set forth on Schedule E attached
hereto, and except for tenant collection actions, if any, and tort claims, if
any, which are fully covered by insurance, there are no legal actions or
proceedings pending or threatened in writing against or relating to the
Property. There are no legal actions or proceedings pending or
threatened in writing against Seller which could have a material adverse effect
on Seller or interfere with Seller’s ability to perform
hereunder. The matters set forth on Schedule E, including
any tort claims, are fully covered by insurance and Seller shall remain
responsible for any deductibles and amounts not covered by
insurance.
5.06 Violations. Seller
has not received any written notice from any governmental authority that the
Property, or the current use, occupation or condition thereof, violate(s) any
governmental statute, law ordinance, rule or regulation applicable (or allegedly
applicable) to the Property, or any order of any governmental agency relating to
the Property and/or the use and/or legal occupancy thereof, which violation has
not been cured and would have a material adverse effect on the
Property.
5.07 Condemnation. Seller
has received no written notice of any federal, state, county or municipal plan
to change the highway or road system in the vicinity of the Property, or to
restrict or change access from any such highway or road to the Property, or of
any pending or threatened condemnation or eminent domain proceedings relating to
or affecting the Property.
5.08 Existing
Loan. Seller has not received written notice of any default
under the Existing Loan. To Seller’s knowledge, no event has occurred
which, with the giving of notice or the passage of time, or both, would
constitute a default by Seller under the Existing Loan Documents.
As used
in this Agreement, or in any other agreement, document, certificate or
instrument delivered by Seller to Buyer, the phrase “to the knowledge of
Seller”, “to Seller’s knowledge”, “to the best of Seller’s knowledge” or any
similar phrase shall mean the actual, not constructive or imputed, knowledge of
Xxxxx Xxxxx, Chief Investment Officer of Berkshire Property Advisors, L.L.C.,
without any obligation on his part to make any independent investigation of the
matters being represented and warranted, or to make any inquiry of any other
persons, or to search or examine any files, records, books, correspondence and
the like.
All
representations and warranties of Seller in this Agreement shall be true and
correct as of the Closing Date in all material respects and all of the
representations and warranties contained herein shall be deemed remade by Seller
effective as of the Closing Date, except for changes to the
representations
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and
warranties in Sections 5.01 and 5.02 consistent with the operation of Seller’s
business in accordance with Sections 8.01 and 8.02.
Buyer
agrees to inform Seller promptly in writing if it discovers that any
representation or warranty of Seller is inaccurate in any material respect, or
if it believes that Seller has failed to deliver to Buyer any document or
material which it is obligated to deliver hereunder.
If Buyer
notifies Seller prior to Closing that any representation or warranty made in
Section 5 is not true and correct in any material respect and Seller fails
to cure or remedy the same prior to Closing, Buyer may either (a) terminate this
Agreement and the Deposit shall be returned to Buyer, and neither party shall
have further rights or obligations pursuant to this Agreement, except for
Buyer’s obligation to repair any damage to the Property and to indemnify Seller
as set forth in Section 6.01; or (b) waive any such representation or warranty
and close the transaction without any reduction in the Purchase
Price.
If
subsequent to Closing Buyer notifies Seller within six (6) months after Closing
that Buyer discovered post-closing that any representation or warranty made in
this Section 5 or in any document delivered at Closing was not true and correct
in any material respect and specifying the breach with particularity, subject to
the limitations set forth in Section 15.02, Buyer shall have available all
remedies at law or in equity as a consequence thereof. If Buyer does
not notify Seller of the breach of any of its representations and warranties set
forth in this Section 5 and institute a lawsuit therefor in a court of competent
jurisdiction within six (6) months after the Closing, Buyer shall be deemed to
have waived all of its rights to claim and xxx for any breach by Seller of any
of its representations and warranties made in this Section 5.
Buyer
agrees to use diligent efforts to notify Seller of any breach of any Seller’s
representations and warranties set forth in this Section 5.
SECTION
6
INSPECTION PERIOD; ACCESS;
PURCHASE “AS IS”
6.01 During
the Inspection Period, Buyer, its agents and representatives, shall be entitled
to enter upon the Property (as coordinated through Seller’s property manager),
including all leased areas, upon reasonable prior notice to Seller, to perform
inspections and tests of the Property, including surveys, environmental studies,
examinations and tests of all structural and mechanical systems within the
Improvements, and to examine the books and records of Seller and Seller’s
property manager relating to the Property. Before entering upon the
Property, Buyer shall furnish to Seller evidence of general liability insurance
coverage in such amounts and insuring against such risks as Seller may
reasonably require. Notwithstanding the foregoing, Buyer shall not be
permitted to interfere unreasonably with Seller’s operations at the Property or
unreasonably interfere with any tenant’s occupancy at the Property, and the
scheduling of any inspections shall take into account the timing and
availability of access to tenants’ premises, pursuant to tenants’ rights under
the Leases or otherwise. If Buyer wishes to engage in any testing
which will damage or disturb any portion of the Property, Buyer shall obtain
Seller’s prior consent thereto, which may be refused or conditioned in Seller’s
sole discretion. Without limiting the generality of the foregoing,
Seller’s written approval (which, notwithstanding the foregoing, may be granted,
withheld or conditioned in Seller’s sole discretion) shall be required prior to
any testing or sampling of surface or subsurface soils, surface water,
groundwater or any materials in or about the Improvements in connection with
Buyer’s environmental due diligence. Buyer shall repair any damage to
the Property caused by any such tests or investigations or Buyer’s entry onto
the Property, and indemnify Seller from any and all liabilities, claims, costs
and expenses resulting therefrom. The foregoing indemnification shall
survive Closing or the termination of this Agreement.
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6.02 The term
“Inspection Period,” as used herein, shall mean the period commencing on the
Effective Date and ending at 5:00 p.m. Boston time on September 30,
2008. Buyer shall have the right to terminate this Agreement, in its
sole discretion, by giving written notice of such election to Seller on any day
prior to and including the final day of the Inspection Period, in which event
the Deposit shall be returned forthwith to Buyer and, except as expressly set
forth herein, neither party shall have any further liability or obligation to
the other hereunder. In the absence of such written notice during the
Inspection Period, or the Board Approval Period, as defined below, the
contingency provided for in this Section 6.02 shall no longer be
applicable, Buyer shall be deemed to have waived its right to terminate
hereunder and this Agreement shall continue in full force and
effect. In the event Buyer timely elects to terminate this Agreement
during the Inspection Period as permitted above, or during the Board Approval
Period, as permitted below, and as additional consideration for Seller granting
Buyer the foregoing condition precedent, Buyer shall deliver to Seller with
Buyer’s notice of termination copies of all final studies, surveys, plans,
investigations and reports (but excluding any internally prepared materials)
obtained by or prepared by Buyer in connection with Buyer’s inspection of the
Property. Buyer makes no warranty or representation as to the
accuracy of any information contained in such
documents. Notwithstanding anything contained herein to the
contrary, Buyer shall have the right to terminate this Agreement on any day
prior to and including October 7, 2008 if Buyer fails to receive approval from
the board of directors of its general partner, Home Properties, Inc. (the period
between the expiration of the Inspection Period and October 7, 2008 is herein
referred to as the “Board Approval Period”), by giving written notice to Seller
stating that Buyer has failed to receive approval from its board of directors,
in which event the Deposit shall be returned to Buyer and, except as expressly
set forth herein, neither party shall have any further liability or obligation
to the other hereunder. In the event that Buyer does not elect to
terminate this Agreement during the Inspection Period or during the Board
Approval Period, as permitted above, the entire Deposit shall become
non-refundable except as may otherwise be provided herein.
6.03 EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER
IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
BUYER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER
AND BUYER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL
FAULTS”, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT, BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE
FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO
(INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY PROSPECTUS DISTRIBUTED WITH
RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE
PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO
REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR
IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. BUYER
ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT
THE PROPERTY IS BEING SOLD “AS-IS.”
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BUYER
REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING,
SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL
AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE TO
SATISFY ITSELF AS TO THE CONDITION
OF THE
PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH
RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY,
AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON
BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN
SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET
FORTH IN THIS AGREEMENT. UPON CLOSING, BUYER SHALL ASSUME THE RISK
THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND
ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY
BUYER’S INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER’S AFFILIATED ENTITIES AND EACH OF
THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, “SELLER
AFFILIATES”)) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF
ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS
AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR
UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND
SELLER’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY
REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR
PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY, OTHER
THAN PURSUANT TO SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE
EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE
PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT.
6.04 Buyer
waives any rights or claims it may have against Seller or any Seller Affiliates
in connection with the presence of, or any loss, cost or damage associated with,
Hazardous Materials (as hereinafter defined) in, on, above or beneath the
Property or emanating therefrom. If at any time after the Closing,
any third party or any governmental agency seeks to hold Buyer responsible for
any loss, cost or damage arising from any Hazardous Materials in, on, above or
beneath the Property or for the violation of any Hazardous Materials Laws, Buyer
agrees that it shall not (a) implead Seller, (b) bring a contribution
action or similar action against Seller, or (c) attempt in any way to hold
Seller responsible with respect to any such matter. The provisions of
this Section 6.04 shall survive the Closing. As used herein,
“Hazardous
Materials” shall mean and include, but shall not be limited to any
petroleum product, all hazardous or toxic substances, wastes or substances and
any substances or organisms (including any mold or fungi) which because of their
quantitated concentration, chemical, or active, flammable, explosive, infectious
or other characteristics, constitute or may reasonably be expected to constitute
or contribute to a danger or hazard to the health, safety or welfare of the
general public or of any occupants of the Building or to the environment,
including, without limitation, any hazardous or toxic waste or substances which
are included under or regulated by any applicable law or regulation (whether now
existing or hereafter enacted or promulgated, as they may be amended from time
to time) including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (“CERCLA”),
42 X.X.X. §0000 et seq.; the Toxic
Substance Control Act (“TSCAS”),
15 X.X.X. §0000 et seq.; the
Hazardous Materials Xxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000; the Resource
Conservation and Recovery Act (“RCRA”),
42 X.X.X. §0000, et seq.; the Clean
Water Act (“CWA”), 33 X.X.X.
§0000 et seq.;
the Safe Drinking Xxxxx Xxx, 00 X.X.X. §000x et seq.; the Clean
Air Act (“CAA”), 42 U.S.C.
§7401 et seq.,
the Federal Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., similar state laws and regulations adopted thereunder
(collectively, “Hazardous Materials
Laws”). The provisions of this Section shall survive Closing
or any termination of this Agreement.
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6.05 No Financial
Representation. Seller has provided to Buyer certain unaudited
historical financial information regarding the Property relating to certain
periods of time in which Seller owned the Property. Seller and Buyer
hereby acknowledge that such information has been provided to Buyer solely as
illustrative material. Seller makes no representation or warranty
that such material is complete or accurate or that Buyer will achieve similar
financial or other results with respect to the operations of the Property, it
being acknowledged by Buyer that Seller’s operation of the Property and
allocations of revenues or expenses may be vastly different than Buyer may be
able to attain. Buyer acknowledges that it is a sophisticated and
experienced purchaser of real estate and further that Buyer has relied upon its
own investigation and inquiry with respect to the operation of the Property and
releases Seller from any liability with respect to such historical financial
information.
6.06 Lead
Warning. Attached hereto as Schedule F as part of
this Agreement is the “Lead Warning Statement” (herein so called), required by
42 U.S.C. §4852d. Buyer has the right to conduct a risk assessment or
inspection for the presence of lead-based paint hazards. If such
inspection reveals a lead-based paint hazard that is not acceptable to Buyer,
Buyer has the right to terminate this Agreement by written notice to Seller
delivered on or prior to the expiration of the Inspection Period. If
Buyer timely terminates this Agreement pursuant to the preceding sentence, the
Deposit shall be returned to Buyer, and Seller and Buyer have no further
obligations, one to the other, with respect to the subject matter of this
Agreement, except for matters expressly surviving termination. If
Buyer fails to timely give such termination notice, Buyer is deemed to have
accepted any lead-based paint condition. Buyer hereby acknowledges
that it has read the Lead Warning Statement and understands its contents, that
it has been given at least a ten (10) day period from the Effective Date to
conduct a risk assessment or inspection for the presence of lead-based paint
hazards, and that Buyer has received and read the Lead Hazard Information
Pamphlet.
6.07 Chapter 53A
Provisions.
(a) Right of First
Refusal. Seller and Buyer acknowledge that the Xxxxxxxxxx
County Department of Housing and Community Affairs (“DHCA”), the Housing
Opportunities Commission of Xxxxxxxxxx County (“HOC”) (DHCA and HOC
are referred to herein collectively as the “County”), and a
certified tenant organization have a statutory right of first refusal (“ROFR”) to purchase
the Property pursuant to one or more of Chapters 11A, 11C and 53A of
the Xxxxxxxxxx County Code (collectively, including all regulations referenced
therein, the “ROFR
Code”).
(b) Notices of
Sale. Within the applicable time periods set forth in the ROFR
Code, Seller shall provide written notice to the County (“Seller’s County
Notice”), as well as to each tenant of the Property (“Seller’s Tenant
Notice”), of the terms and conditions under which Seller has agreed to
sell the Property to Buyer under this Agreement. Seller's County
Notice and Seller’s Tenant Notice shall include all information necessary to
comply with the requirements of the ROFR Code. The date Seller’s
County Notice is received by the County is referred to herein as the “Notice
Date”.
(c) Certificate of
Compliance. In the event that at any time before the sixtieth
(60th) day
following the Notice Date, the County provides notice (written or oral) to
either Seller or Buyer that the County has elected to waive its ROFR, or the
County has not elected to exercise its ROFR on or before the sixtieth (60th) day
following the Notice Date, then promptly thereafter Seller shall request in
writing that DHCA deliver to Seller a certificate of compliance certifying that
the right of first refusal requirements of the ROFR Code have been complied with
and that no tenant organization has any further rights under the ROFR Code (the
“Certificate of
Compliance”).
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(d) Termination
Right. Notwithstanding anything to the contrary in this
Agreement, if DHCA fails to issue a Certificate of Compliance on or before the
seventy-fifth (75th) day
following the Notice
Date, Seller or Buyer shall thereafter have the right, but not the obligation,
to terminate this Agreement by providing written notice of such election to the
other, and the Deposit shall be returned to Buyer and neither party shall have
any further rights, duties, liabilities or obligations under this Agreement,
except as otherwise expressly set forth herein.
(e) Due Diligence
Costs. In the event that the County elects to exercise its
ROFR, Seller shall reimburse Buyer for the reasonable third-party costs and
expenses incurred by Buyer in performing its due diligence investigations with
respect to the Property up to an amount not to exceed $25,000 in the
aggregate.
SECTION
7
INSURANCE
7.01 Maintenance of
Insurance. Until the Closing, Seller shall maintain its
present insurance on the Property which insurance in respect of fire and
casualty shall be covered by a standard All-Risk Policy in the amounts as
currently insured. Subject to the provisions of Section 7.02,
the risk of loss in and to the Property shall remain vested in Seller until the
Closing. Buyer will obtain its own insurance on the Property at
Closing.
7.02 Casualty or
Condemnation. If prior to the Closing, the Improvements or any
material portion thereof (having a replacement cost equal to or in excess of Two
Million and No/100 Dollars ($2,000,000)) are damaged or destroyed by fire or
casualty, or any material part of the Property (for which a condemnation award
is in excess of Two Million and No/100 Dollars ($2,000,000)) is taken by eminent
domain by any governmental entity, then Buyer shall have the option, exercisable
by written notice given to Seller at or prior to the Closing, to terminate this
Agreement, whereupon all obligations of all parties hereto shall cease, the
Deposit shall be returned to Buyer and this Agreement shall be void and without
recourse to the parties hereto except for provisions which are expressly stated
to survive such termination. If Buyer does not elect to terminate
this Agreement or if such damage or destruction or taking has a replacement cost
or is in an amount of less than Two Million and No/100 Dollars ($2,000,000),
Buyer shall proceed with the purchase of the Property without reduction or
offset of the Purchase Price, and in such case, unless Seller shall have
previously restored the Property to its condition prior to the occurrence of any
such damage or destruction, Seller shall pay over or assign to Buyer all amounts
received or due from, and all claims against, any insurance company or
governmental entity as a result of such destruction or taking and Buyer shall be
entitled to a credit against the Purchase Price equal to the deductible amount,
if applicable, under Seller’s insurance policy.
SECTION
8
SELLER’S OBLIGATIONS PRIOR
TO CLOSING
Seller
covenants that between the Effective Date and the Closing:
8.01 Leasing. From
and after the expiration of the date of this Agreement, Seller shall not,
without Buyer’s prior written consent, which consent shall not be unreasonably
withheld or delayed (provided that the failure of Buyer to respond to a request
for approval by Seller within five (5) days after receipt thereof shall be
deemed an approval by Buyer of said request), (a) enter into any new lease
for an apartment unit with a first-time tenant unless the lease is for a period
of no more than twenty-four (24) months and the rent shall be not less than the
current market rent for the respective apartment as reasonably determined by
Seller; or (b) enter into, amend, renew or extend any Lease for an
apartment unit with an existing tenant unless the lease is for a period of not
more than twenty-four (24) months and
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8.02 that the
rent for the amended, renewal or extension term shall be consistent with
Seller’s customary practices with respect to renewal rent; or (c) terminate
any Lease except by reason of a default by the tenant thereunder or by reason of
the provisions contained in the Lease.
8.03 Continuation of Service
Contracts. Seller shall not modify or amend any Service
Contract or enter into any new service contract for the Property, without the
prior written consent of Buyer which consent shall not be unreasonably withheld
or delayed provided such contract is terminable without penalty by the then
owner of the Property upon not more than thirty (30) days’ notice.
8.04 Replacement of Personal
Property. No personal property included as part of the
Property shall be removed from the Property unless the same is replaced with
similar items of at least equal quality prior to the Closing.
8.05 Tax
Procedure. Seller shall not withdraw, settle or otherwise
compromise any protest or reduction proceeding affecting real estate taxes
assessed against the Property for any fiscal period in which the Closing is to
occur or any subsequent fiscal period without the prior written consent of
Buyer. Real estate tax refunds and credits received after the Closing
which are attributable (a) to any fiscal period prior to the fiscal tax year
during which the Closing occurs shall be paid to Seller, and (b) to the fiscal
tax year during which the Closing occurs shall be apportioned between Seller and
Buyer, after deducting the expenses of collection thereof, based upon the
relative time periods each owns the Property, which obligation shall survive the
Closing.
8.06 Access. Seller
shall allow Buyer or Buyer’s representatives access to the Property, the Leases
and other documents required to be delivered under this Agreement upon
reasonable prior notice at reasonable times; provided Buyer agrees that the
original leases and all other original documents shall remain on-site at the
Property.
SECTION
9
SELLER’S CLOSING
OBLIGATIONS
9.01 Closing, Deliveries and
Obligations. At the Closing, Seller shall deliver the
following to the Escrow Agent:
(a) Deed. The
Deed, in the form attached hereto as Exhibit A, duly
executed and acknowledged by Seller, which conveys the Land and Improvements to
Buyer or its assignee, subject only to Permitted Exceptions.
(b) Xxxx of
Sale. A xxxx of sale in the form attached hereto as Exhibit B, as
executed by Seller.
(c) General
Assignment. A general assignment in the form attached as Exhibit C (the “Assignment”), as
executed by Seller.
(d) Lease
Records. Original copies of all Leases, and related documents
in the possession or under the control of Seller. Such records shall
include a schedule of all cash security deposits and other refundable deposits
and a credit against the Purchase Price in the amount of such security deposits
and other refundable deposits held by Seller at the Closing under the Leases
together with appropriate instruments of transfer or assignment with respect to
any lease securities which are other than cash and a schedule updating the Rent
Roll and setting forth all arrears in rents and all prepayments of
rents.
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(e) Permits. Seller
shall deliver, to the extent in the possession of Seller: original
copies of all certificates, licenses, permits, authorizations and approvals
issued for or with respect to the Property by governmental authorities having
jurisdiction, except that photocopies may be substituted if the originals are
posted at the Property.
(f) Title
Affidavits. Such affidavits as the Title Insurer may
reasonably require in order to omit from its title insurance policy all
exceptions, other than Permitted Exceptions, for (i) parties in possession
other than under the rights to possession granted under the Leases; and
(ii) mechanics’ liens.
(g) Files. Seller
shall make all of its files and records relating to the Property available to
Buyer at the Property upon reasonable prior notice for copying, which obligation
shall survive the Closing.
(h) Notices of
Sales. A letter in the form attached as Exhibit D, executed
by Seller, advising the tenants under the Leases of the sale of the Property to
Buyer and directing that all rents and other payments thereafter becoming due
under the Leases be sent to Buyer or as Buyer may direct.
(i) Non-Foreign
Affidavit. A certification with respect to compliance by
Seller with the Foreign Investment and Real Property Tax Act, IRC
Section 1445(b)(2), as amended, in the form attached as Exhibit
E.
(j) Rent
Roll. An updated Rent Roll, re-certified to be true, complete
and accurate, in the form attached as Exhibit
F.
(k) Management Agreement
Termination. A termination of the existing management
agreement, executed by Seller and the property manager, in the form attached as
Exhibit
G.
(l) Transfer Tax
Declaration. Any transfer tax declaration, if any, required to
be filed in connection with the recording of the Deed.
(m) Assignment and Assumption
Documents. The Assignment and Assumption Agreement, in
recordable form, duly executed by Seller before a notary public, in the form of
which has been previously approved by all parties thereto.
(n) Other
Documents. Deliver any other documents required by this
Agreement to be delivered by Seller.
9.02 Seller’s
Expenses. Seller shall pay (i) its own counsel fees; (ii)
one-half of any escrow fees; (iii) fifty percent (50%) of all state, county, and
local transfer taxes, documentary stamp taxes, or other similar taxes (except
any recordation or similar tax in connection with the Assumption or any of
Buyer’s other financing arrangements, for which Seller shall have no
responsibility); and (iv) those fees, costs and expenses customarily charged at
closing to a seller in accordance with the custom of the State of
Maryland.
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SECTION
10
BUYER’S CLOSING
OBLIGATIONS
At the
Closing, Buyer shall:
Payment of Purchase
Price. Deliver to Escrow Agent, the Equity Portion of the
Purchase Price, as adjusted for (a) apportionments under Section 11,
and (b) any adjustments thereto required pursuant to the express provisions
this Agreement.
10.01 Assignment. The
Assignment, as executed by Buyer.
10.02 Assignment and Assumption
Agreement. The Assignment and Assumption Agreement, in
recordable form, duly executed by Buyer before a notary public, in the form of
which has been previously approved by all parties thereto, and such other
documents as may be required by Existing Lender.
10.03 Other
Documents. Deliver any other documents required by this
Agreement to be delivered by Buyer.
10.04 Buyer’s
Expenses. Buyer shall pay (i) its own counsel fees, (ii) the
cost of the base premium for the Title Policy and any additional premiums
charged by the Title Insurer for the Title Policy, including, without
limitation, extended coverage in connection with the issuance of the Title
Policy and the cost of any endorsements to the Title Policy requested by Buyer,
(iii) the cost of the Survey; (iv) any costs and expenses relating to the
assumption of the Existing Loan (excluding Seller’s attorneys fees), including,
without limitation, any assumption fee charged by Existing Lender, (v) fifty
percent (50%) of all state, county, and local transfer taxes, documentary stamp
taxes, or other similar taxes; (vi) one hundred percent (100%) of all
recordation or other similar tax in connection with the Assumption or Buyer’s
other financing arrangements; (vii) one-half of any escrow fees, and (viii)
those fees, costs and expenses customarily charged at closing to a buyer in
accordance with the custom of the State of Maryland.
SECTION
11
APPORTIONMENTS AND
ADJUSTMENTS TO PURCHASE PRICE
The
following apportionments shall be made between the parties at the Closing as of
the close of the business day prior to the Closing:
(a) Buyer
shall receive from Seller a credit for any rent and other income under Leases
collected by Seller before Closing that applies to any period after
Closing. Uncollected rent and other uncollected income shall not be
prorated at Closing. After Closing, Buyer shall apply all rent and
income collected by Buyer from a tenant, first to any due but unpaid rentals
accruing subsequent to the Closing Date, then to any rents past due for the
calendar month in which Closing occurred (subject to adjustment), and then to
any rents which were due and unpaid prior to the Closing Date, remitting
promptly to Seller, any balance properly allocable to Seller’s period of
ownership. Buyer shall xxxx and use commercially reasonable efforts
to collect such rent arrearages in the ordinary course of business, but shall
not be obligated to engage a collection agency or take legal action to collect
any rent arrearages. Any rent or other income received by Seller
after Closing which are owed to Buyer shall be remitted to Buyer promptly after
receipt for allocation and disbursement as provided herein;
(b) refundable
security deposits and other refundable deposits; it is the intent of the parties
that all refundable security deposits and other refundable deposits shown on the
Rent Roll shall be transferred by Seller to Buyer at Closing; provided, however,
all non-refundable tenant fees such as cleaning fees, redecorating fees and pet
fees shall be retained by Seller; on the Closing, Buyer shall in writing
acknowledge receipt of and expressly assume all Seller’s financial and custodial
obligations with respect to all such security deposits, it being the intent and
purpose of this provision that, at Closing,
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(c) Seller
will be relieved of all fiduciary and custodial obligations from and after
Closing, and that Buyer will assume all such obligations and be directly
accountable to the residents of the Property with respect to all such security
deposits from and after Closing;
(d) there
shall be no adjustment for wages, vacation pay, pension and welfare benefits and
other fringe benefits of all persons employed by Seller at the Property; it
being the intent of the parties that simultaneously with the Closing, Seller
shall terminate any existing management agreement and Buyer shall have no
liability or obligation with respect to any employee of Seller or its management
company prior to Closing;
(e) real
estate taxes, personal property taxes, water charges and sewer charges, if any,
on the basis of the most recent billing period, as reflected on the actual
invoices/bills issued by the appropriate taxing authority or utility
provider;
(f) Seller
shall receive a credit for utility deposits for any utility accounts which are
transferred to Buyer;
(g) prepayments
paid by Seller under assigned Service Contracts, provided there shall be no
adjustment or proration for any initial inducement payments made to Seller by
providers of telephone, cable television, internet or similar service
providers;
(h) Buyer
shall be responsible for all leasing or brokerage commissions for tenants who
have executed a lease prior to the Closing Date but do not move in until after
the Closing Date;
(i) interest
under the Existing Loan attributable to the month during which the Closing
occurs; and
(j) in the
event of an Assumption, Seller shall receive a credit at the Closing for all
escrow amounts or reserves deposited in connection with the Existing Loan which
are to remain in effect after Closing for the benefit of Buyer.
If the
Closing shall occur before a new tax rate or new assessed valuation is fixed for
the fiscal period in which Closing occurs, the apportionment of taxes at the
Closing shall be upon the basis of the tax rate or assessed valuation for the
preceding period, as applicable. Promptly after the new tax rate or
new assessed valuation is fixed, the apportionment of taxes shall be recomputed.
Any discrepancy resulting from such recomputation and any errors or omissions in
computing apportionments at the Closing shall be promptly corrected, which
obligation shall survive the Closing. If any operating expenses or
other prorations cannot conclusively be determined as of the date of Closing,
then the same shall be adjusted at Closing based upon the most recently issued
bills thus far, or if any bills paid after Closing by Seller or Buyer relate to
periods prior to and after the Closing Date, such items shall be re-adjusted
within one hundred eighty (180) days after the Closing occurs. The
provisions of this Section 11 shall survive the Closing Date for a period of one
hundred eighty (180) days.
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SECTION
12
FAILURE TO
PERFORM
12.01 Buyer’s
Election. If Seller is unable to satisfy all of Seller’s
obligations as set forth in this Agreement, Buyer shall have the right to elect,
in its sole discretion, at the Closing, to accept such title as Seller can
deliver to the Property in its then condition and to pay therefor the Purchase
Price without reduction or offset, in which case Seller shall convey such title
for such price.
12.02 Seller’s
Default. If at the Closing, Seller is unable to satisfy all of
Seller’s obligations as set forth in this Agreement, and Buyer does not elect to
take title as provided in Section 12.01, Seller shall be in default under
this Agreement and the Deposit shall be forthwith returned to Buyer and Buyer
shall have no other rights or remedies against Seller. In addition to
the foregoing, if Buyer desires to purchase the Property in accordance with the
terms of this Agreement and Seller intentionally refuses to perform Seller’s
obligations hereunder, Buyer, at its option, and as Buyer’s sole and exclusive
remedy, shall have the right to compel specific performance by Seller hereunder
in which event the Deposit shall be delivered to Seller at Closing and credited
against the Purchase Price, provided, however, that (i) Buyer shall only be
entitled to such remedy if (A) any such suit for specific performance is filed
within thirty (30) days after Buyer becomes aware of the default by Seller and
notifies Seller of such default, and (B) Buyer is not in default under this
Agreement.
12.03 Buyer’s
Default. The parties acknowledge that in the event of Buyer’s
failure to fulfill its obligations hereunder it is impossible to compute exactly
the damages which would accrue to Seller in such event. The parties
have taken these facts into account in setting the amount of the Deposit,
required pursuant to Section 2.03, and hereby agree that: (a) such
amount together with the interest earned thereon is the pre-estimate of such
damages which would accrue to Seller; (b) such amount represents damages
and not any penalty against Buyer; and (c) if this Agreement shall be
terminated by Seller by reason of Buyer’s failure to fulfill Buyer’s obligations
hereunder, the Deposit together with the interest thereon shall be Seller’s full
and liquidated damages in lieu of all other rights and remedies which Seller may
have against Buyer at law or in equity.
12.04 Cure. If
either Buyer or Seller fails to perform any of their respective obligations
under this Agreement (excluding the closing obligations under Sections 9 and 10
hereof), the non-defaulting party shall give written notice to the defaulting
party specifying such default and, except as to defaults which occur as of
Closing, the defaulting party shall not be in default under this Agreement
unless the defaulting party fails to cure such default within five (5) days
after the delivery by the non-defaulting party of said written
notice. Notwithstanding anything in the foregoing sentence to the
contrary, if either party is in default of their respective closing obligations
under Sections 9 and 10 hereof, the non-defaulting party shall not be required
to deliver notice and the defaulting party shall not be entitled to a cure
period with respect to a default of any closing obligation under said
Sections.
SECTION
13
BROKERAGE
FEES
13.01 Brokerage
Fees. Seller and Buyer mutually represent and warrant that CB
Xxxxxxx Xxxxx (“Broker”) is the only
broker with whom they have dealt in connection with this purchase and sale and
that neither Seller nor Buyer knows of other any broker who has claimed or may
have the right to claim a commission in connection with this purchase and
sale. The commission of the Broker shall be paid by Seller pursuant
to a separate agreement, but Seller shall be obligated to pay such commission
only if, as and when the Deed is recorded and not otherwise. In any
event, Buyer shall have no obligation to pay a brokerage commission to
Broker. Seller and Buyer shall indemnify and defend each other
against any costs, claims or expenses, including attorneys’ fees, arising out of
the breach on their respective parts of any representations, warranties or
agreements contained in this Section. Buyer acknowledges and agrees
that Broker is not authorized by Seller to make, and Broker has not at any time
made, any representation or warranty of any kind or character, express or
implied, with respect to Seller or the Property. The representations
and obligations under this Section shall survive the Closing or, if the Closing
does not occur, the termination of this Agreement.
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13.02
NOTICES
13.03 Effective
Notices. All notices and/or notifications under this Agreement
shall be in writing and shall be delivered personally or shall be sent by
Federal Express or other comparable overnight delivery courier (delivery is
deemed to be one business day after deposit with such overnight courier),
addressed as set forth at the beginning of this Agreement or by telecopier to
the telecopier number as set forth at the beginning of this Agreement, provided
that transmission is confirmed by the sender’s telecopier and followed by a copy
sent by overnight delivery courier (delivery is deemed to be the date of the
telecopier transmission confirmation). Notices shall be deemed
effective, when so delivered. Copies of all such notices to Buyer
shall be sent to 850 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx Xxxxx, Esq., Telephone No.: 000-000-0000, Telecopier No.
000-000-0000, and copies of all such notices to Seller shall be sent to Xxxxxxx
X. Xxxxxx, Esq., Xxxxxxx XxXxxxxxx LLP, 150 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Telephone No.: 000-000-0000, Telecopier
No. 000-000-0000 and to Xxxx Xxxx Xxxxx, General Counsel, The Berkshire
Group, Onx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000,
Telephone No.: 000-000-0000, Telecopier No. 000-000-0000.
SECTION
14
LIMITATIONS ON
SURVIVAL
14.01 Representations and
Warranties. Except as otherwise expressly provided in this
Agreement, no representations, warranties, covenants or other obligations of
Seller set forth in this Agreement shall survive the Closing, and no action
based thereon shall be commenced after Closing. The representations,
warranties, covenants and other obligations of Seller set forth in
Section 5 and in any document delivered at Closing shall survive until six
(6) months after the Closing, and no action based thereon shall be commenced
more than six (6) months after the Closing.
14.02 Merger. The
delivery of the Deed by Seller, and the acceptance and recording thereof by
Buyer, shall be deemed the full performance and discharge of each and every
obligation on the part of Seller to be performed hereunder and shall be merged
in the delivery and acceptance of the Deed, except as provided in
Section 15.01 and except for such other obligations of Seller which are
expressly provided herein to survive the Closing.
SECTION
15
MISCELLANEOUS
PROVISIONS
15.01 Assignment. Buyer
shall be entitled to assign this Agreement and its rights hereunder to a
corporation, general partnership, limited partnership, limited liability company
or other lawful entity entitled to do business in the state in which the
Property is located provided such entity, shall be controlled by, controlling or
under the common control with Buyer (“Assignee”). In
the event of such an assignment of this Agreement to Assignee (a) Buyer
shall notify Seller promptly, (b) Buyer and Assignee shall be jointly and
severally liable under this Agreement from and after such assignment,
(c) Assignee shall assume all obligations of Buyer under this Agreement and
(d) from and after any such assignment the term “Buyer” shall be deemed to
mean the Assignee under any such assignment. Buyer shall also be
entitled to assign pursuant to Section 16.12.
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15.02 Limitation of
Liability. No shareholders, partners or members of either
party, nor any of its or their respective officers, directors, agents,
employees, heirs, successors or assigns shall have any personal liability of any
kind or nature for or by reason of any matter or thing whatsoever under, in
connection with, arising out of or in any way related to this Agreement and the
transactions contemplated herein, and each party hereby waives for itself and
anyone who may claim by, through or under such party any and all rights to xxx
or recover on account of any such alleged personal liability.
Notwithstanding
anything set forth in this Agreement to the contrary, Buyer agrees that Seller
shall have no liability to Buyer for any breach of Seller’s covenants,
agreements, representations or warranties hereunder or under any other
agreement, document, certificate or instrument delivered by Seller to Buyer
unless the valid claims for all such breaches collectively aggregate more than
Five Thousand and 00/100 Dollars ($5,000.00), in which event the full amount of
such valid claims shall be actionable, up to the cap set forth in the following
sentence. Further, Buyer agrees that any recovery against Seller for
any breach of Seller’s covenants, agreements, representations and warranties
hereunder or under any other agreement, document, certificate or instrument
delivered by Seller to Buyer, or under any law applicable to the Property or
this transaction, shall be limited to Buyer’s actual damages not in excess of
Five Hundred Thirty Five Thousand and 00/100 Dollars ($535,000.00) in the
aggregate and that in no event shall Buyer be entitled to seek or obtain any
other damages of any kind, including, without limitation, consequential,
indirect or punitive damages.
15.03 Integration. This
Agreement embodies and constitutes the entire understanding between the parties
with respect to the transaction contemplated herein, and all prior agreements,
understandings, representations and statements, oral or written, are merged into
this Agreement. Neither this Agreement nor any provision hereof may
be waived, modified, amended, discharged or terminated except by an instrument
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
15.04 Governing
Law. This Agreement shall be governed by, and construed in
accordance with the laws of the state in which the Property is
located.
15.05 Captions. The
captions in this Agreement are inserted for convenience of reference only and in
no way define, describe or limit the scope or intent of this Agreement or any of
the provisions hereof.
15.06 Bind and
Inure. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
assigns.
15.07 Drafts. This
Agreement shall not be binding or effective until properly executed and
delivered by both Seller and Buyer. The delivery by Buyer to Seller
of an executed counterpart of this Agreement shall constitute an offer which may
be accepted by the delivery to Buyer of a duly executed counterpart of this
Agreement and the satisfaction of all conditions under which such offer is made,
but such offer may be revoked by Buyer by written notice given at any time prior
to such acceptance and satisfaction.
15.08 Number and
Gender. As used in this Agreement, the masculine shall include
the feminine and neuter, the singular shall include the plural and the plural
shall include the singular, as the context may require.
15.09 Attachments. If
the provisions of any schedule, exhibit or rider to this Agreement are
inconsistent with the provisions of this Agreement, the provisions of such
schedule, exhibit or rider shall prevail. The Schedules and Exhibits
attached are hereby incorporated as integral parts of this
Agreement.
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15.10 Confidentiality/Filings/Press
Releases. Prior to Closing, both Seller and Buyer agree to
keep this Agreement confidential, and not to disclose its contents to anyone
except (a) their respective lenders, investors, partners, legal counsel,
accountants, and other representatives that are involved with the consummation
of this transaction; or (b) as may be required by applicable law, except that
either party may make such public announcement regarding the transaction
contemplated by this Agreement as may, in such party’s reasonable judgment, be
required by, or appropriate under, applicable law, including, without
limitation, disclosures required to be made to the Securities and Exchange
Commission or the American Stock Exchange and any press releases required in
connection with such Security and Exchange Commission or American Stock Exchange
filings.
15.11 Time. Time
is of the essence in the performance of the parties’ respective obligations set
forth in this Agreement. If the Closing Date or any other deadline
hereunder should fall on a Saturday, Sunday or legal holiday, such date shall
automatically be extended to the next normal business day. For
purposes of this Agreement a “business day” shall mean any calendar day not a
Saturday, Sunday or legal holiday.
15.12 Tax-Free
Exchange. If
either party (the “Advising Party”)
advises the other party (the “Non-Advising Party”)
of its intention to seek to effect a tax deferred exchange pursuant to Section
1031 of the Internal Revenue Code, in connection with the purchase of the
Property, Non-Advising Party agrees to accommodate Advising Party in seeking to
effect a tax deferred exchange for the Property, provided that such exchange
shall not (i) delay the Closing or (ii) require Non-Advising Party to incur any
cost or liability of any kind or nature on account of such
exchange. Advising Party may assign its rights under this Agreement
immediately prior to Closing to an Exchange Accommodation Titleholder (or
limited liability company wholly owned by the Exchange Accommodation
Titleholder) or Qualified Intermediary of Advising Party’s choice for the
purpose of completing such an exchange. Non-Advising Party agrees to
cooperate with Advising Party and the Exchange Accommodation Titleholder with
respect to such exchange and agrees to execute all documentation required to
effectuate such exchange, at no cost or liability to Non-Advising
Party. Non-Advising Party makes no warranty whatsoever with respect
to the qualification of the transaction for tax deferred exchange treatment
under Section 1031 and Non-Advising Party shall have no responsibility,
obligation or liability with respect to the tax consequences to Advising
Party.
15.13 Post-Closing Audit
Rights. For a period of three (3) years after the Closing
Date, upon no less than fifteen (15) days’ prior written notice, each party
agrees to make available to the other and its respective independent accountants
or attorneys, for inspection and copying, at the requesting party’s sole cost
and expense, sufficient information to prepare or amend tax returns and/or
audited financial statements and an audit letter for the Property for the
calendar years of 2005, 2006, 2007 and 2008, or for any other reasonable
purpose, which information shall include books and records for the Property,
property and operating statements, insurance policies, real estate tax records,
capital expenditures records and maintenance records of the Property, if and to
the extent that such records are in such party’s actual possession as of the
Closing Date. All such records shall be made available for inspection
by the requesting party and its independent accountants or attorneys at such
location as the party providing the records may reasonably choose.
15.14 Further
Assurances. In addition to the acts and deeds recited herein
and contemplated to be performed, executed and/or delivered by either party at
Closing, each party agrees to perform, execute and deliver, but without any
obligation to incur any additional liability or expense, on or after the Closing
any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Buyer.
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15.15 SECTION
17
XXXXXXXXXX COUNTY MANDATED
PROVISIONS
17.1 Maryland Critical Area
Disclosure (Section 14-117(e), Real Property Article, Md.
Code).
NOTICE
TO PURCHASER CONCERNING THE CHESAPEAKE AND ATLANTIC COASTAL BAYS CRITICAL
AREA.
Buyer is
advised that all or a portion of the Property may be located in the "critical
area" of the Chesapeake and Atlantic Coastal Bays, and that additional zoning,
land use, and resource protection regulations apply in this area. The
"critical area" generally consists of all land and water areas within 1,000 feet
beyond the landward boundaries of State or private wetlands, the Chesapeake Bay,
the Atlantic Coastal Bays, and all of their tidal tributaries. The
"critical area" also includes the waters of and lands under the Chesapeake Bay,
the Atlantic Coastal Bays, and all of their tidal tributaries to the head of
tide. For information as to whether the Property is located within
the critical area, Buyer may contact the local department of planning and
zoning, which maintains maps showing the extent of the critical area in the
jurisdiction. Allegany, Xxxxxxx, Xxxxxxxxx, Xxxxxxx, Xxxxxx,
Xxxxxxxxxx and Washington counties do not include land located in the critical
area.
17.2 Montgomery County
Disclosures. The Xxxxxxxxxx County disclosures set forth on
Schedule G
attached hereto are hereby incorporated into this Agreement.
[signature
pages to follow]
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[Westchester
West]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as
of the date first above written.
SELLER:
BRI
WESTCHESTER LIMITED PARTNERSHIP,
a
Maryland limited partnership
By: BIR
Westchester, L.L.C.,
a
Delaware limited liability company,
its
general partner
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X.
Xxxxx
Title:
President
BUYER:
HOME
PROPERTIES, L.P.,
a New
York limited partnership
By: Home
Properties, Inc.,
its
general partner
By: /s/ Xxxx
X.
Xxxxx
Xxxx X.
Xxxxx, Senior Vice President
A/72617552.10
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[Westchester
West]
RECEIPT
The
Purchase and Sale Agreement, together with the Initial Deposit, has been
received by the Escrow Agent on this the __9th_ day of __September____, 2008,
and the Escrow Agent acknowledges the terms thereof and agrees to perform as
Escrow Agent in accordance therewith.
ESCROW
AGENT:
LAWYERS
TITLE INSURANCE CORPORATION
By: /s/ XxXxx X.
Xxxxxx
XxXxx X.
Xxxxxx, Assistant Vice President
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LIST OF SCHEDULES AND
EXHIBITS
Schedules
Schedule
A - Description of Land
Schedule
B - Personal Property
Schedule
C - Rent Roll
Schedule
D - Service Contracts
Schedule
E - Litigation
Schedule
F - Lead Warning Statement
Schedule
G - Xxxxxxxxxx County Disclosures
Exhibits
Exhibit A
- Form of Deed
Exhibit B
- Form of Xxxx of Sale
Exhibit C
- Form of General Assignment
Exhibit D
- Form of Tenant Notice Letter
Exhibit E
- Form of FIRPTA Certificate
Exhibit F
- Form of Rent Roll Certificate
Exhibit G
- Form of Termination of Management Agreement
A/72617552.10
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